Guidelines Relating to the Eligibility of Iraqi Asylum-Seekers October 2005 I. Introduction 1. This paper is intended to provide background information and general guidelines for facilitating the determination of a need for international protection of Iraqi asylum-seekers. Given the current state of general insecurity and lawlessness throughout Iraq and the fact that new groups may be targeted, it is by no means exhaustive and is not intended to be used as a rigid formula: each and every individual case must be assessed on its own merits by applying the appropriate eligibility criteria. Although this paper focuses mostly on the period between the handover of sovereignty in June 2004 and the end of July 2005, certain topics and their corresponding references are nevertheless shown in their historical context where this adds to a fuller understanding of the general situation in Iraq. 2. Despite the fall of the former regime, widespread civil strife and persecution related to the grounds listed in the 1951 Convention relating to the Status of Refugees (‘1951 Convention’) nevertheless continues in today’s Iraq. Given the atrocious forms of persecution suffered by some individuals under the former regime, when determining refugee status under the 1951 Convention it will be necessary to take compelling reasons arising from past persecution and current international protection needs into consideration. This is particularly important as long as the climate of daily violence continues to prevent the authorities from providing effective national protection. It is also important because certain groups are targeted on the basis of real or perceived political affiliation, ethnic or religious background or membership in a particular social group. II. General Situation and Political Developments 3. Up until the invasion of Iraq in March 2003 by the US-led Coalition Forces, Saddam Hussein’s ruling Ba’ath party was one of the strongest and most severe state regimes in the region. The use of brutal force and repressive policies deprived the Iraqi people of the exercise of many basic human rights. It created a climate of fear and oppression under which the punishment meted out to anyone suspected of not agreeing with or supporting the regime ranged from interrogation to imprisonment, torture, disappearances and even death. The fear created by this system was nevertheless effective in deterring criminality and hence ensuring the general (albeit superficial) security of the population. The system, although corrupt, also controlled 1 and met most basic daily needs in Iraq, although there were many shortages. These needs included, inter alia, health services, education, water, electricity and sanitation services. 4. Since the collapse of the former regime Iraq has been plagued by violence, including car bombings, kidnappings and assassinations. The fall of the former Government in April 2003 signalled the collapse of the Iraqi state apparatus. Since that time, daily life in Iraq (with the exception, to some extent, of the three Northern Governorates of Dohuk, Sulaymaniyah and Erbil) has essentially been governed by an extremely precarious security situation due to the activities of various insurgent groups. The loyalties of the insurgents lie with various sources of power, but they share a common aversion to the presence of foreign troops in Iraq, particularly the Americans. The general chaos created by the invasion and subsequent toppling of the former Government provided fertile space for many organized armed groups to resist the occupation and target any perceived collaborators through the use of violence, often with total impunity. Furthermore, the dismantling of the Iraqi army and security forces has, further, created a security ‘gap’ in the country which the current authorities are unable to fill as members of the new Iraqi Security Forces (ISF) – and especially new recruits – are among the prime targets of the insurgents. Despite efforts to reform and rebuild the ISF, they are not yet capable of independently fighting the insurgency and rely heavily on the presence of the Multinational Forces (MNF). The MNF have committed to not withdraw from Iraq before the ISF are able to ‘stand on their own feet’. While re-establishing security remains a priority for the Iraqi authorities, tangible improvements in security will likely require much more time and further political initiatives. 5. As a result of the situation described above, Iraq is currently faced with the following problems, among others:1 high civilian death tolls due to continuing armed attacks on MNF/ISF and deliberate attacks on the Iraqi civilian population, often intended to cause large numbers of casualties; displacement of the civilian population due to ongoing armed hostilities, mainly in the Centre but also in other areas (e.g. the Governorate of Mosul in the North); waning public confidence in the ability of the Iraqi Transitional Government (ITG) and the Transitional National Assembly (TNA) to improve the situation; a high criminality rate; the lack of a properly functioning judicial system and a continued need for judicial reform; weakness of local security system (police forces) resulting in impunity for crimes committed; 1 IRIN, ‘IRAQ: Living conditions still poor,’ 16 May 2005, http://www.irinnews.org/report.asp?ReportID=47141&SelectRegion=Middle_East&SelectCountry=IR AQ; ibid., IRAQ: Focus on increase in kidnappings, 11 April 2005, http://www.irinnews.org/report.asp?ReportID=46576&SelectRegion=Middle_East; UNDP, Iraq Living Conditions Survey, Analytical Report, April 2005, http://www.iq.undp.org/ILCS/PDF/Analytical%20Report%20-%20English.pdf. 2 slow reconstruction and a lack or instable supply of proper health, education, water, electricity and other social facilities; significant housing shortage; the impossibility, due to the security situation, for many people to enjoy basic human rights ranging from the right to life to freedom of speech, religion (for members of religious minorities), association, etc.; rampant unemployment; a continuous trend of kidnapping; - widespread corruption undermining confidence in the authorities and hampering reconstruction. Emergency Law 6. An Iraqi National Intelligence Service was set up in April 2004 which reports directly to the Prime Minister. However, in June 2004, the (then) interim Prime Minister announced a major re-organization of the ISF. As part of this re- organization, an additional agency called General Security Directorate was created, and given the responsibility of clamping down on the insurgency. 7. On 7 July, 2004, the Iraqi Interim Government (IIG) passed the Order for Safeguarding National Security (Order 1 of 2004) which consists of 13 articles referring to the state of emergency, and measures that can be taken during such a state. These include searches, arrest and detention, interference with correspondence, the confiscation of property and weapons, and restrictions on freedom of movement, association and commercial activities. The Order gives the interim Prime Minister the power to declare martial law for up to sixty days, beyond which period such a state can only be prolonged with the approval of the Presidency Council. The Order also empowers the Prime Minister to impose curfews, order the closure of roads, sea-lanes and airspace, declare restrictions or bans on public gatherings, order the surveillance of electronic and other communications, and gives him wide powers to search property and detain suspects. The Order stipulates that no person can be arrested except upon the issuance of arrest warrants from the judicial authorities, and that the persons in question should be brought before an investigative judge within twenty- four hours. Only in ‘extreme exigent circumstances’ does the law permit arrests or searches without a warrant, although the parameters of this clause have not been elaborated upon in the law. 8. Article 1 of the Public Safety Law allows for the declaration of a state of emergency ‘upon exposure of the people of Iraq to a danger of grave proportions, threatening the lives of individuals and emanating from an ongoing campaign of violence by any number of people, for the purpose of preventing the establishment of a broad-based government in Iraq, or to hinder the peaceful participation of all Iraqis in the political process or for any other purpose’. On 7 November 2004, the Prime Minister declared a state of emergency for a period of sixty days ahead of the military intervention in Fallujah. This state of emergency was extended during the elections which took place in January 2005. To date, the Emergency law is still in place. For further details on the current security situation and the Law, please refer to the UNHCR Country of Origin Information Paper - Iraq of September 2005, hereinafter referred to as ‘COI paper’. 3 III. Legal Framework 9. Under the former regime, Iraq became a party to the following international human rights instruments which are, therefore, binding upon the successive Iraqi governments. The instruments and their date of signature are as follows: The International Covenant on Civil and Political Rights (23 March 1976); The International Covenant on Economic, Social and Cultural Rights (3 January 1976); The International Convention for the Elimination of All Forms of Racial Discrimination (13 February 1970); The Convention on the Elimination of All Forms of Discrimination against Women (12 September 1986); The Convention on the Rights of the Child